100 S.E. 173 | N.C. | 1919
Lead Opinion
The action is to recover damages for failure to deliver 100 barrels of seed potatoes, pursuant to a contract of defendant with plaintiff, J. W. Richardson, and in which coplaintiff had acquired an interest pending negotiations. The amount of $5 per barrel had been paid by plaintiff making order, on "deposit," to be applied towards the purchase money, pursuant to the terms of the agreement.
There was denial of liability by defendant and a counterclaim for balance of the purchase money alleged to be due defendants, claiming that the potatoes were in all respects up to contract specifications.
On the issue as to damages, the court restricted plaintiff to recovery at most of the $500 made on deposit, as stated.
As ancillary process in the cause, plaintiffs had sued out an attachment and caused same to be levied on the potatoes that were shipped and after plaintiffs had declined to receive same.
The jury rendered the following verdict:
1. Did the defendants contract to sell to the plaintiffs 100 barrels of Irish potatoes at the price of $12.50 f. o. b. New York, for shipment August the first, upon the terms set out in the correspondence offered in evidence? Answer: "Yes."
2. Did the defendants fail to comply with the terms of said contract? Answer: "Yes."
3. What damage, if any, are the plaintiffs entitled to recover therefor? Answer: "$500 and interest."
4. What amount, if any, are the defendants entitled to recover of plaintiffs by reason of their counterclaim set up in the answer? Answer: __________
There was judgment on the verdict for plaintiff and (48) both sides appealed, assigning errors.
DEFENDANT'S APPEAL. The facts in evidence tended to show that, in answer to a letter of plaintiff, doing business in Elizabeth City, N.C. of date 7 June, 1917, seeking to purchase a lot of "Peach Blow" "cold storage" seed potatoes, and making inquiry as to price of 100 bags and per carload, defendants, doing business in New York City, wrote *51 in reply from that place on 8 June as follows: "We are in receipt of your letter of the 7th asking us to give you prices on some Peach Blow cold storage potatoes, but we have no Peach Blow, and we promptly wired you that we had 40 bags of Cobblers and 100 bags of Spaulding Rose No. 4. Spaulding Rose No. 4 is very similar to the Peach Blow. We quote you these at $12.50 per barrel f. o. b. New York, for shipment August 1. If you order, we shall expect deposit of $5 a barrel at once, the balance draft attached to bill of lading. Any shrink to be stood by you after they go into cold storage. Goods are sound and a No. 1 now in every matter. We await response to this matter.
Yours very truly, S.D. WOODRUFF SONS."
On 11 June plaintiff wrote from Elizabeth City, N.C. accepting offer 100 barrels Spaulding Rose at price of letter, and on 12 June sent a telegram to plaintiff, accepting offer, and on 20 June sent the $500 as required, etc. It was admitted that on 2 August Woodruff Sons shipped from New York to their own order 86 barrels of Irish potatoes, bill of lading attached, order notify New Bern Produce Company, and same arrived at Elizabeth City on 8 August. There was testimony on part of plaintiff to the effect that the potatoes so shipped, on arrival at Elizabeth City, were utterly unfit for the purpose for which they were ordered, and were at the time they were put in cold storage and at the time same were shipped out of cold storage on 2 August. "That the barrels were about one-half to two-thirds full; that they were sprouting, with sprouts one-half to three inches long; they were soft, shrivled [shriveled] up, and a great many of them rotten." That plaintiff declined to accept the potatoes and thereupon instituted the action for damages, and had issued and levied an attachment on same as property of defendants.
Plaintiff's testimony further tended to show that the term, "Any shrink to be stood by the purchaser after they (49) go into cold storage," as contained in letter of defendant proposing sale, signified only "that when the barrels are filled they will stretch and cause the potatoes to shrink," and had no reference to the condition of the potatoes except perhaps as to weight, but in other respects, potatoes, if up to specifications, should have continued sound to time of arrival in Elizabeth City, and that the market value of seed potatoes at said time of arrival was from $18 to $25 per barrel.
The testimony of defendants tended to show that the potatoes were sound and fully up to specifications when put in cold storage, 20 June, 1917; were properly cared for there, and were sound and all *52 right when shipped; that the natural effect of taking potatoes out of cold storage, exposing same to the temperature then existent, from 2 August to 8, would cause them to shrink and make them soft, etc., etc.; that the term "shrinkage to be stood by you" covers both sprouting, rotting and softening, and "was put in there to protect the defendants," etc.
Upon this, the evidence chiefly relevant to the inquiry, it is insisted for the defendant that the facts showed an executed contract of sale at the time the potatoes were put in cold storage on 20 June, and any damage by reason of such storage or which thereafter followed must be properly borne by the purchaser, but we do not so interpret the agreement. It is undoubtedly true, as defendant contends, that present physical delivery of the goods is not always required to an executed contract of sale but that title will pass without it if that be the intent of the parties as expressed in the agreement. In the last case on the subject, Teague v.Grocery Co.,
"On the present record there are facts in evidence tending to show that this transaction was an executed contract of sale, having reference to designated and specific pieces of property, and if these facts should be accepted by the jury, it is well understood that present physical delivery of the property is not necessary to the transfer of the title but that the same passes according to the intent of the parties as expressed in the contract between them; and further, that in the absence of specific agreement on the question the presumption is that the title passed at the time of the purchase and without such delivery," citing Richardson v. Ins. Co.,
"Under an executory contract for the sale and delivery of goods of a specified quality, the quality is a part of the description, and the seller is bound to furnish goods actually complying with such description. If he tenders articles of inferior quality the vendee is not bound to accept them, and unless he does so, he is not liable therefor. This necessarily gives to the vendee the right of inspection, and he must be given an opportunity to make (51) such inspection before becoming liable for the purchase price, unless the contract otherwise provides.
"A vendee of merchandise shipped from a distant point, under a contract specifying the quality of the merchandise and providing for its delivery f. o. b. at the point of shipment, but which contains no provisions as to the time or place of payment, inspection or *54 acceptance, is entitled to a reasonable time after the merchandise arrives at its destination in which to inspect it at that point, and to reject it if it does not comply with the contract.
"Assuming, without deciding, that where merchandise is sold under a contract providing for its delivery to a carrier f. o. b. at the point of shipment, title vests in the vendee, for some purposes, at the time when the merchandise is delivered to the carrier, such title is, nevertheless, conditional as between the vendor and vendee, the condition being that the merchandise shall be found to be of the quality called for by the contract; and such conditional vesting of title in the vendee does not prevent the latter from exercising his right of inspection when the merchandise arrives at its destination."
And Bean, C.J., delivering the opinion, refers also with approval toPierson v. Crooks,
Defendant objects, further, that W. W. NewBern, a witness for plaintiffs, who examined the potatoes on arrival at Elizabeth City, and testified as to their condition, was allowed to give his opinion, based upon such examination as to their condition on 2 August when taken out of cold storage. This witness had previously stated, after giving description of potatoes on arrival, that he had had sixteen years experience handling potatoes, handling from 5,000 to 10,000 barrels of seed potatoes each year, some from cold storage and some not, and knew from experience the effect of cold storage upon them. On such statement and under numerous decisions of the Court the opinion of this witness was clearly competent. Hux v.Reflector Co.,
"Testimony of this kind, from such a source, is coming to be more and more allowed in investigations of this character, and the courts are disposed to admit `opinion evidence' when the witnesses have had personal observation of the facts and conditions, and from their practical training and experience are in a condition to aid the jury to a correct conclusion. While not expert testimony in the strict sense of the word, it is coming to have a recognized place in the law of evidence."
After careful consideration we find no error as to exceptions (52) appearing in defendant's appeal, and on such questions we are of opinion that the judgment should be affirmed.
No error. *55
PLAINTIFF'S APPEAL.
Addendum
Plaintiff excepted and appealed from a ruling of the court restricting the amount of damages to the $500 advanced as a deposit. The plaintiff having, as established by the verdict, rightfully exercised his privilege of rejecting the potatoes because not in compliance with the specifications, the title to the goods remained in the defendants, plaintiffs are assuredly entitled to recover the $500 paid on deposit, and, as now advised, we see no reason why, in addition to this amount, they should not be allowed to recover the difference between the contract and market price at the time and place of delivery, as provided in the executory contract, f. o. b. New York, 1 August, 1917, this being the rule ordinarily applicable in such cases and illustrated and applied in numerous decisions of this Court on the subject. Flour Mills v. Distributing Co.,
For the error indicated and on plaintiff's appeal there will be a new trial on the issues as to damages, and it is so ordered.
Partial new trial.
Cited: York v. Jeffreys,